On Aug. 19, 2022, the U.S. Department of Health and Human Services (HHS), Department of Labor, and Department of the Treasury released final rules revising portions of the federal No Surprises Act. The rules finalize three aspects of the two-part interim final rule Part I and Part II, issued by the departments and the Office of Personnel Management in July and October 2021.
The rules expand the information about the qualifying payment amount (QPA) that plans, and issuers, must disclose to providers and facilities. The rules also reinterpret the provisions of the No Surprises Act that govern the determination of the appropriate out-of-network rate through the federal independent dispute resolution (IDR) process, and they prescribe how certified IDR entities are to weigh the QPA and other considerations when selecting one of the parties’ offers. The certified IDR entity must now consider the QPA first, and then give weight to other considerations only if those other considerations are not accounted for in the QPA. Lastly, the final rules expand the information that a certified IDR entity must provide in its written payment determination to include a statement explaining why the QPA did not already account for other considerations weighed by the IDR entity.
The final rules, which address updates to the IDR process that were urgent because of a court order vacating regulatory content in Part II of the interim final rule, are narrow in their focus, reacting to comments and making changes on several outstanding issues. The surprise billing rulemaking process is not yet complete as scores of issues have yet to be addressed, including processes for auditing payers for compliance with requirements related to the QPA; what constitutes “ancillary services” for purposes of the balance billing notice and consent exception; and procedures for governing “good faith” estimates for insured individuals, set to take effect Jan. 1, 2023. While the departments intend to speak to public comments on other portions of the interim final rule and expect to publish additional rules and guidance at a future date, no timeline has been set for publication. In the meantime, the departments recommend that interested parties and stakeholders continue to monitor further regulatory action.